McKissick v. McKissick
McKissick v. McKissick
Opinion of the Court
Floyd McKissick (plaintiff) appeals from an order of the trial court awarding Cynthia Heath McKissick (defendant) attorneys’ fees.
The facts are as follows: On 26 June 1995, the plaintiff sought custody of the parties’ minor child. The defendant filed an answer on 27 June 1995 in which she sought, inter alia, recovery of belongings left in the marital home, injunctive relief prohibiting the plaintiff from disposing of marital property, equitable distribution, a declaration that the parties’ pre-marital agreement was void, and attorneys’ fees. On 28 August 1995 the plaintiff filed a reply seeking to establish that the pre-marital agreement was an enforceable bar to the defendant’s claims for equitable distribution.
On 7 September 1995 the defendant made a “Motion For Return of Personal Property” in which she asked to be given possession of all her pre-marital personal property in the plaintiff’s possession. In his response, the plaintiff claimed that some of the items requested by the defendant were the plaintiffs separate property and asked the trial court to deny the defendant’s motion. On 10 December 1996, nunc pro tunc for 25 April 1996, the trial court concluded in its order that the parties’ pre-marital agreement was valid and the “defendant’s claims as to the pre-marital agreement were . . . dismissed” but did not specifically rule on the defendant’s other claims such as equitable distribution. On 14 May 1996, the trial court allowed the defendant to amend her motion for return of personal property to include post marriage items which constituted her separate property pursuant to the pre-marital agreement.
On 10 September 1996 the trial court entered an order directing the plaintiff to return specified items of the defendant’s property or pay monetary damages in the alternative. The order reserved the issue of attorneys’ fees for a subsequent hearing. On 14 January 1997 the court entered an order giving the defendant attorneys’ fees in the amount of $4,200.00 pursuant to N.C. Gen. Stat. §§ 6-18(2) and 50-20(i). The trial court dismissed the defendant’s claims for equitable distribution, interim distribution of marital property, and alimony on 9 March 1997.
The issue is whether an action to recover the possession of separate property can support an award of attorneys’ fees under either (I) N.C. Gen. Stat. § 6-18(2) or (II) N.C. Gen. Stat. § 50-20(i).
“In an action to recover the possession of personal property,” filed pursuant to N.C. Gen. Stat. § 1-230,
II
The plaintiff argues that an award of attorneys’ fees is also not supported by N.C. Gen. Stat. § 50-20(i).
We agree that if the trial court had no jurisdiction to enter the section 50-20(i) order, it had no jurisdiction to enter an award of attor
Affirmed.
. “In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or for the value thereof in case a delivery cannot be had, and damages for the detention.” N.C.G.S. § 1-230 (1996).
. N.C. Gen. Stat. § 50-20(i) provides in pertinent part:
Upon filing an action . . . requesting equitable distribution ... a party may seek injunctive relief pursuant to G.S. 1A-1, Rule 65 and Chapter 1, Article 37, to prevent the disappearance, waste or conversion of property alleged to be marital property or separate property of the party seeking relief. . . . Upon application by the owner of separate property which was removed from the marital home or possession of its owner by the other spouse, the court may enter an order for reasonable counsel fees and costs of court incurred to regain its possession but such fees shall not exceed the fair market value of the separate property at the time it was removed.
N.C.G.S. § 50-20(i) (Supp. 1997).
. We need not and therefore do not address the question of whether the trial court would have had the jurisdiction to order the transfer of separate property pursuant to section 50-20(i) if that order had been entered after the dismissal of the equitable distribution claim.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.